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Initializing Secure Chambers
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Petitioner: ATTA MUHAMMAD ALIAS FAUJI VS Respondent: STATEHonorable Justice MUHAMMAD MUNIR KHANCh. Muhammad -Ashraf Azeem, Advocate and Muhammad Aslam Chaudhry, Advocate-on-Record,Raja Abdul Ghafur, Advocate
1995 S C M R 1409
1995 S C M R 1409
[Supreme Court of Pakistan]
Present: Muhammad Munir Khan, Mir Hazar Khan Klroso and Maulana Muhammad Taqi Usmani; JJ
ATTA MUHAMMAD alias FAUJI‑‑‑Appellant
versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 12(S) of 1995, decided of 24th April, 1995.
(On appeal from the judgment of Federal Shariat Court dated 26‑2‑1994 passed in Criminal Appeal No. 295‑L of 1994).
Prohibition (Enforcement of Hadd) Order (4 of 1979)‑‑‑
‑‑‑‑Art. 4‑‑‑Appraisal of evidence‑‑‑From the evidence on record it was very much obvious that the accused was in the custody of the police at least two days before the alleged recovery of the heroin and opium from him‑‑‑Accused was acquitted in circumstances.
Ch. Muhammad ‑Ashraf Azeem, Advocate and Muhammad Aslam Chaudhry, Advocate‑on‑Record (absent) for Appellant.
Raja Abdul Ghafur, Advocate for the State.
Date of hearing: 24th April, 1995.
ORDER
MUHAMMAD MUNIR KHAN, J.‑‑‑This appeal by leave of the Court arises from the facts that Atta Muhammad alias Fauji/appellant was tried by Magistrate under section 30, Vehari, on the charge of keeping 3 kg. heroin and 7 kg. opium, on 9‑1‑1993 at 6‑30 a.m., who, vide judgment dated 2‑10‑1993 convicted the appellant under Article 4 of the Prohibition (Enforcement of Hadd).Order, 1979 and sentenced him to six years' R.I., thirty stripes, and a fine of Rs.10,000, or in default six months' R.I. more. The appeal filed by him against conviction and sentence was dismissed by the Federal Shariat Court on 26‑2‑1994. Feeling aggrieved thereby; he filed a petition for leave to appeal which was granted on 17‑4‑1995.
2. Learned counsel for the parties have been heard. According to the statements of the recovery witnesses, Malik Rustam Ali SI/S.H.O. (P.W.2), Muhammad Afsar Khan, A.S:I. (P.W.4) and Muhammad Sarwar, Constable (P.W.5) 3 kilogram heroin and 7 kilograms opium was recovered from the possession of the petitioner on 9‑1‑1993. In his statement under section 342, Cr.P.C., while raising the plea of false involvement, the appellant stated that he was arrested by the police on 6‑1‑1993 at the, instance of one Jani with whom he had dispute over money transaction. Giving the details of his plea, he stated:
3. Sh. Khalid Masood (D.W.1 Reporter Daily Musawat) and Ghulam Bari (D.W.2 Reporter Daily Nawa‑i‑Waqt, Multan) have supported the statement of the appellant with regard to the holding of Press Conference by S.P., Vehari in which he told the press about the arrest of the appellant on 7‑1‑1993 and recovery of heroin and opium from his possession. It may be noted here that while closing his defence evidence, the appellant had relied on the news‑items appearing in daily Musawat and Nawa‑i‑Waqt, Multan dated 8‑1‑1993 wherein it has clearly been stated that the S.P. Vehari in his Press Conference ' held on 7‑1‑1993 had told the press about the arrest of Atta Muhammad alias Fauji and recovery of three kg. heroin and five kg opium from him.
4. We do not see any reason to disbelieve the statements made by the two defence witnesses which are supported from the news‑reports published on 8‑1‑1993 i.e.‑ one day before the alleged arrest and recovery of the heroin and opium from the appellant. All recovery witnesses‑have unanimously stated that the appellant was arrested by them on 9‑1‑1993 and the recovery from him was effected on that date. In this view of the matter, we are convinced that the story of the appellant's arrest on 9‑1‑1993 at 6‑00 a.m. in Hussain Chowk, Mustafa Abad, District Vehari and the recovery of the heroin and opium from his motor‑cycle at the time is false. From the evidence on record it is very much obvious that the appellant was in the custody of the police at least two days before the alleged recovery of the heroin arid opium from him on 9‑1‑1993.
5. The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction and sentence, the appeal is accepted, the impugned judgment is set aside and the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case.
N.H.Q./A‑1288/S Appeal accepted.